The Ombudsman's final decision
Summary: We will not investigate this complaint that the Council has failed to make appropriate educational provision for the complainant’s daughter. This is because investigation would not lead to a different outcome.
The complaint
The complainant, who I will refer to as Miss X, complains that the Council has: failed to act on an undertaking to provide 1:1 support for her daughter; delayed issuing her daughter’s Education Health and Care Plan (EHC Plan) following an urgent annual review; failed to make educational provision while her daughter has been unable to attend school.
The Ombudsman’s role and powers
We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide we could not add to any previous investigation by the organisation, or further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6), as amended, section 34(B)) The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended) The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
How I considered this complaint
I considered information provided by the complainant.
I considered the Ombudsman’s Assessment Code.
My assessment
Miss X’s daughter has special educational needs and an EHC Plan. She has not attended the school named in the EHC Plan since September 2023, though she remains on the school’s roll. Miss X says the Council has failed to make provision for her daughter’s education while she has been unable to attend the school.
An urgent annual review of the EHC Plan was carried out in September 2023. Miss X says the Council’s representative agreed with her contention that it should make 1:1 provision for her daughter. She says it has not, and that it delayed informing her of its decision not to do so.
Miss X further complains that the Council delayed issuing the amended EHC Plan following the annual review, thereby delaying her opportunity to appeal against its contents to the SEND Tribunal.
The Council has upheld Miss X’s complaint in part. It does not accept that it committed to making 1:1 provision. It does however agree that it delayed informing her of its decision not to do so, and that it delayed issuing the final amended EHC Plan. In recognition of the fault it has identified it has offered to make symbolic payments totalling £450. It does not accept Mrs X’s contention that it had a duty to make alternative educational provision for her daughter.
The Ombudsman will not investigate Miss X’s complaint because investigation would not lead to a different outcome. We can take no view on whether the Council should make 1:1 provision for Miss X’s daughter because this is a matter which could be subject to appeal to the SEND Tribunal. Even if this provision had been written into the amended EHC Plan, the duty to secure it would not have applied in the period before the EHC Plan was issued. When it was issued, its content became subject to appeal.
The Council has accepted it was at fault, in that there was delay in the process and it did not clarify its position as quickly as it should have. It has offered a symbolic remedy which is reasonable in the circumstances of the case.
It does not follow however that the identified fault had the effect of denying Miss X’s daughter provision to which she was entitled. The Council takes the view that education was available to her at the school at which she was on roll throughout the period and its duty to make alternative provision was not therefore engaged. Miss X disagrees, but I note that the school is named in the amended EHC Plan. Whether alternative provision was appropriate is not therefore separable from the issues which may be appealed and does not therefore fall to be investigated.
Final decision
We will not investigate Miss X’s complaint because investigation would not lead to a different outcome.
Investigator's decision on behalf of the Ombudsman